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TMI Blog1986 (2) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... at in a declared income of Rs. 6,000 the penalty for late filing is not legality imposable. 3. That there was no dishonest and contumacious conduct in not filing the return. 4. That the ratio of the decision laid down in the case of Noor Khan is applicable to the facts of the present case. 5. That the various decisions cited by the ld. AAC do not apply to the facts of the present case. 6. That the penalty order is arbitrary, excessive and unjust. 7. That the penalty order is liable to be cancelled." 3. The departmental representative argued that there was no force in the contentions of the assessee that the assessee's income was below taxable limit and hence the assessee was not liable to levy of any penalty under s. 271(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ures (mentioned above). There was a raid in the premises of the assessee as a result of which books of account and documents were seized. These books of account showed money lending transactions of the assessee including pawning and the books contained credits in various names which could not be proved to be genuine. After addition of these unexplained amounts, the total incomes were computed finally at the figures mentioned above. It was thus argued that the assessee could not have bona fidely believed that his total income in various years was a paltry figure of Rs. 6,000, Rs. 6,500 as per figures declared by the assessee by estimate in the return filed. It was argued by the departmental representative that there was no question of bona f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The burden could be discharged by a preponderance of probabilities as in a civil case and not necessarily by proof beyond reasonable doubt. (2) Addl. CIT vs. Dargapandarinath Tuljayya Co. (1977) 107 ITR 850 (AP) (FB). In this case, it has been held by their Lordships of Andhra Pradesh High Court that the elements of mens rea need not be established before the levy of penalty under s. 271(1)(a). (3) Pratap Steel Rolling Mills vs. CIT (1978) 111 ITR 183 (P H). It was held in this case that if the return was belated, penalty under s. 271(1)(a) was leviable and it would be immaterial that penalty would not have been leviable but for the addition in the total income made by the ITO. (4) Kunj Behari Lal Lalta Prasad vs. ITO (198 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellate authority, clearly shows that the assessee had income much above taxable limit in all these years. It could not be held that the assessee was under a bona fide belief that his income was below taxable limit in all these years. The case law cited by the assessee in its support CIT s. Noor Khan Bros. (1973) 92 ITR 338 (All) does not help the assessee as the condition laid down by their Lordships in that case is not met in the case of the present assessee before us as per reasons mentioned above. There is no other cause forthcoming or mentioned even before the authorities below for the huge delay in filing the returns of various years. In spite of the fact that the assessee had maintained books of account, which were detected in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der that the penalty should be re-computed on the basis of incomes finally assessed after giving effect to the appellate order. As far as the asst. yr. 1972-73 is concerned, as mentioned above, the return was filed on 29/30th Dec., 1972 and not on 28th March, 1978. The period of delay in this year thus was only of four complete months and not of 67 complete months for which penalty has been levied by the ITO for this year. Later notice under s. 148 was also issued and if there was any delay in filing the return in response to notice under s. 148, the said delay may also be counted and added to this period of delay of four months. The figure of penalty levied for asst. yr. 1972-73, therefore, should be revised accordingly. Except for this di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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